ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before: ADAMS, GARTH*fn* and VAN DUSEN, Circuit Judges
This appeal presents the question whether, in a criminal case, reversal is required when a district court fails to conduct a colloquy with a defendant before accepting a written waiver of her right to a jury trial. We conclude that under the circumstances present here reversal is neither mandatory nor appropriate, and therefore affirm the conviction.
Ruth Anderson, the defendant, was indicted on two counts of wilful and intentional tax evasion. Anderson signed a form waiving her right to a trial by jury, to which the government and the district court agreed in writing. Following a bench trial, she was convicted on both counts. Her primary contention on this appeal is that the district judge committed reversible error by failing to conduct a colloquy with her on the record before accepting the written waiver of a jury trial. She acknowledges that there is no rule now in force in this Circuit requiring such a procedure, but requests that this Court adopt a supervisory rule applicable to this as well as subsequent cases, which would require the district courts in this Circuit to conduct a colloquy in all criminal cases where the defendant seeks to waive the right to trial by jury.
The right of a criminal defendant to be tried by a jury of her peers is a fundamental constitutional guarantee. Duncan v. Louisiana, 391 U.S. 145, 20 L. Ed. 2d 491, 88 S. Ct. 1444 (1968); Patton v. United States, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253 (1930).
A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government. . . . Beyond this, the jury trial provisions in the Federal and State Constitutions reflect a fundamental decision about the exercise of official power -- a reluctance to entrust plenary powers over the life and liberty of the citizen to one judge or to a group of judges. Fear of unchecked power, so typical of our State and Federal Governments in other respect, found expression in the criminal law in this insistence upon community participation in the determination of guilt or innocence.
Duncan, 391 U.S. at 156-57 (footnote omitted). Because of the importance of the right to jury trial, it can be waived only by a defendant's "express and intelligent consent," and the agreement of both the government and the court. Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965); Patton v. United States, 281 U.S. 276, 74 L. Ed. 854, 50 S. Ct. 253 (1930).*fn1
Rule 23(a) of the Federal Rules of Criminal Procedure requires that the right to jury trial be waived explicitly in writing; no reference is made to oral colloquys. Nonetheless, in addition to the written waiver referred to in Rule 23(a), a district court usually conducts a colloquy with the defendant, on the record, to ascertain whether the defendant fully understands the nature of the right being relinguished and the implications of that decision. As we stated in United States v. Mitchell, 427 F.2d 1280 (3d Cir. 1970), we believe that a colloquy between the district judge and the defendant is preferable to the mere acceptance by the court of the written waiver and the filing of it in the record of the case. The colloquy between the judge and the defendant serves both to emphasize to the defendant the seriousness of the decision to waive the right to trial by jury and to create a clear record of the circumstances of the waiver, establishing that "express and intelligent consent" was indeed given by the defendant. Singer v. United States, 380 U.S. 24, 13 L. Ed. 2d 630, 85 S. Ct. 783 (1965).
Although this is the preferred practice, we decline to follow the Seventh Circuit and set forth a supervisory rule making it the required procedure in this Circuit. See United States v. Delgado, 635 F.2d 889 (7th Cir. 1981); United States v. Scott, 583 F.2d 362 (7th Cir. 1978). The defendant has not demonstrated nor even suggested that the failure to conduct a colloquy is a recurring problem in the district courts. Also, as we noted above, Rule 23(a), which governs the waiver procedure in federal courts, requires only a written statement, not an oral colloquy. Before adding to the provisions set forth in the Federal Rules, which are adopted after most careful consideration, at the very least a compelling need for such addition should be made out. Accordingly, we shall continue to rely on the district courts to employ the means most appropriate to a particular case in order to insure that a defendant's waiver of the right to a trial by jury is knowingly and ...